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212 congressional Dems call on court to overturn DOMA

In first, Senators join House Dems in saying anti-gay law is unconstitutional

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Tammy Baldwin, United States Senate, Wisconsin, Democratic Party, gay news, Washington Blade
Tammy Baldwin, United States Senate, Wisconsin, Democratic Party, gay news, Washington Blade

Sen. Tammy Baldwin was among the signers of the congressional Democrats brief against DOMA (Washington Blade photo by Michael Key)

An unprecedented coalition of 212 House and Senate Democrats have joined together in calling on the U.S. Supreme Court to strike down the anti-gay Defense of Marriage Act.

In a 35-page brief filed on Friday, congressional Democrats argue DOMA should be struck down because the law should be subject to heightened scrutiny and the law singles out gay and lesbian couples for harm. The case challenging the statute is Windsor v. United States.

“DOMA imposes a sweeping and unjustifiable federal disability on married same-sex couples,” the brief concludes. “It is ‘class legislation’ that lacks any rational connection to legitimate federal interests, thus violating the Fifth Amendment’s equal-protection guarantee.”

While House Democrats have filed friend-of-the-court briefs in cases challenging DOMA at lower appellate courts, the latest brief is unprecedented because for the first time Senate Democrats have signed on as well. The 172 House Democrats who signed the brief were joined by 40 Senate Democrats.

House Democrats who signed the brief include House Minority Leader Nancy Pelosi (D-Calif.) and Rep. Jerrold Nadler (D-N.Y.), who lead the effort to gather signatures, as well as the six openly LGB members of the U.S. House: Reps. Jared Polis (D-Colo.), David Cicilline (D-R.I.), Sean Patrick Maloney (D-N.Y.), Mark Pocan (D-Wis.), Kyrsten Sinema (D-Ariz.) and Mark Takano (D-Calif.).

Senators who joined in the effort are lesbian Sen. Tammy Baldwin (D-Wis.) as well as Senate Majority Leader Harry Reid (D-Nev.), Assistant Majority Leader Richard Durbin (D-Ill.) and Senate Judiciary Committee Chair Patrick Leahy (D-Vt.).

The brief devotes significant attention to disputing the arguments in favor of DOMA made by the House Republican-led Bipartisan Legal Advisory Group — which has taken up defense of DOMA in place of the administration — particularly BLAG’s argument that gays enjoy political power and thus aren’t a suspect class.

Congressional Democrats take note of how the LGBT people unable has been unable pass legislation to institute federal protections against job bias — the Employment Non-Discrimination Act — as an example of their political powerlessness.

“In fact, in the nearly twenty years since it was first introduced, ENDA passed only once in the House and never in the Senate,” the brief states. “That gay men and lesbians have been unable to achieve even the modest goal of obtaining basic protection against employment discrimination — despite the fact that 89 percent of the American people supports such protection — shows that BLAG is flat wrong in contending that gay men and lesbians enjoy ‘remarkable political clout.'”

The brief also details harm that DOMA causes same-sex couples who are unable to receive federal benefits of marriage — as well as the harm the statute causes children living in these families.

“Many married lesbians and gay men raise children together,” the brief states. “DOMA harms them and their children, and affords no benefit to different-sex couples or their children. It thus cannot survive equal protection review.”

Notably, the brief refrains from making the argument that Congress passed DOMA in 1996 out of animus — a position held by many LGBT advocates — and instead maintains it was made law because members of Congress at the time didn’t know gay people.

“From our perspective — including those of us who voted for DOMA — debate and passage of the law did not necessarily arise ‘from malice or hostile animus,’ but instead from ‘insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves,'” the brief states. “While fear and distrust of families different from our own may explain why DOMA passed by comfortable majorities in 1996, it does not obviate the need for a constitutionally permissible justification for the law.”

Evan Wolfson, president of Freedom to Marry, commended congressional Democrats speaking out against DOMA before the Supreme Court.

“It’s a key indicator of how indefensible the so-called Defense of Marriage Act is that now literally hundreds of members of Congress are signing a brief repudiating it,” Wolfson said. “These senators and representatives, like the American people they serve, know that the government shouldn’t be assigning second-class status to legally married same-sex couples.”

No Republicans signed the brief. Even though Reps. Ileana Ros-Lehtinen (R-Fla.) and Richard Hanna (R-N.Y.) have signed on as co-sponsors to legislation that would repeal DOMA — and penned their names to another brief from 131 Republicans arguing that California’s Proposition 8 is unconstitutional — their names are absent from the DOMA brief.

Ilan Kayatsky, a Nadler spokesperson, deferred comment on the absence of any Republican names from the DOMA brief to Republicans. Neither Ros-Lehtinen’s nor Hanna’s office immediately responded to a request to comment.

The argument presented in the brief is along the lines of the argument that the Obama administration made against DOMA in the brief the Justice Department filed last month.

On Thursday, the administration also filed a brief before the Supreme Court arguing Prop 8 is unconstitutional in addition to the DOMA brief. However, congressional Democrats didn’t do the same and only submitted on brief on DOMA.

Drew Hammill, a Pelosi spokesperson, said the Democratic leader was focused on building support for the DOMA brief and its argument that DOMA should be subject to heightened scrutiny will assist in efforts to overturn California’s marriage ban.

“The brief provides the congressional members’ perspective on why there is absolutely no legitimate federal interest in discrimination, and why, given the history of how DOMA was enacted, heightened judicial scrutiny is needed for federal laws that discriminate against the LGBT community,” Hammill said. “In making the case for heightened scrutiny, the amicus brief will assist the efforts to overturn Proposition 8.”

Hammill also said Pelosi has spoken out against Prop 8 and “appreciates” the Justice Department’s filing against the constitutional ban on same-sex marriage in California.

“From the outset, Leader Pelosi has strongly opposed Proposition 8, and believes that the legal advocacy by opponents of Proposition 8 has been outstanding,” Hammill said. “The Leader looks forward to the day when all Californians – and indeed, all Americans everywhere – have the right to marry who they love.  She appreciates the President’s strong leadership in favor of overturning Proposition 8 and of striking down DOMA.”

Asked in a follow-up email to clarify whether Pelosi believes Prop 8 is unconstitutional, Hammill replied, “She has said so repeatedly.”

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Puerto Rico

Two men charged with attacking trans Puerto Rican woman plead guilty to federal hate crimes charges

Alexa Negrón Luciano attacked with paintball gun before her murder

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(Bigstock photo)

Two men on Monday pleaded guilty to federal hate crimes charges in connection with attacking a transgender woman in Puerto Rico in 2020.

A Justice Department press release notes Jordany Laboy Garcia, Christian Rivera Otero and Anthony Lobos Ruiz “were out driving together” in Toa Baja, a municipality that is about 15 miles west of San Juan, early on Feb. 24, 2020, “when they saw” Alexa Negrón Luciano “standing under a tent near the side of the road.”

“The defendants recognized A.N.L. from social media posts concerning an incident that had occurred the day prior at a McDonald’s in Toa Baja,” reads the press release. “During that incident, A.N.L. had used a stall in the McDonald’s women’s restroom.”

“Upon recognizing A.N.L., Lobos-Ruiz used his iPhone to record a video of himself yelling, ‘la loca, la loca,’ (‘the crazy woman, the crazy woman’) as well as other disparaging and threatening comments to A.N.L. from inside the car,” it notes. “The defendants then decided to get a paintball gun to shoot A.N.L. and record another iPhone video. Within 30 minutes, they retrieved a paintball gun and returned to the location where they had last seen A.N.L., who was still at that location. Lobos-Ruiz then used his iPhone to record Laboy-Garcia shooting at A.N.L. multiple times with the paintball gun. After the assault ended, Lobos Ruiz shared the iPhone video recordings with others.”

Negrón was later killed in Toa Baja.

Laboy and Rivera pleaded guilty to conspiracy to commit a hate crime and obstruction of justice. El Nuevo Día, a Puerto Rican newspaper, notes a federal judge sentenced Lobos to two years and nine months in prison after he pleaded guilty to hate crimes charges last November.

Laboy and Rivera are scheduled to be sentenced on Nov. 10.

They, along with Lobos, have not been charged with Negrón’s murder.

“To assault an innocent victim who posed no threat to the defendants for no other reason than her gender identity is reprehensible behavior that will not be tolerated,” said U.S. Attorney W. Stephen Muldrow for the District of Puerto Rico in the Justice Department’s press release. “The Justice Department will continue to vigorously defend the rights of all people, regardless of their gender identity, to be free from hate-fueled violence. Our community must stand together against acts of violence motivated by hate for any group of people — we remain steadfast in our commitment to prosecute civil rights violations and keep our communities safe and free from fear.”

Pedro Julio Serrano, spokesperson for Puerto Rico Para Todes, a Puerto Rican LGBTQ rights group, on Tuesday welcomed the guilty pleas. Serrano also urged authorities to bring those who killed Negrón to justice. 

“The time for total justice for Alexa is now,” said Serrano in a press release. “Her murder was a hate crime. Nobody doubts this. They falsely accused her, persecuted her, hunted her, insulted her with transphobic epithets, uploaded onto social media a video of them accosting her and they killed her. There are already three individuals who will serve time in federal prison for attacking her in a hate crime. That’s some justice, but not complete.” 

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Federal Government

Barbara Lee: PEPFAR is ‘more in peril’ than ever before

Congress has yet to reauthorize funding for Bush-era HIV/AIDS program

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U.S. Rep. Barbara Lee (D-Calif.) speaks about the future of PEPFAR at the Congressional Black Caucus Foundation's Annual Legislative Conference in D.C. on Sept. 22, 2023. (Washington Blade photo by Michael K. Lavers)

California Congresswoman Barbara Lee on Sept. 22 said the President’s Emergency Plan for AIDS Relief is “more in peril” now than at any point since its launch two decades ago.

“This program is reauthorized every five years, but it’s always on a bipartisan basis,” said Lee during a panel at the Congressional Black Caucus Foundation’s Annual Legislative Conference that took place at the Walter E. Washington Convention Center in D.C. “As we approach the benchmark of an AIDS-free generation by 2023, it is unfortunately more in peril now than ever before.”

Then-President George W. Bush in 2003 signed legislation that created PEPFAR.

Lee noted PEPFAR as of 2020 has provided nearly $100 billion in “cumulative funding for HIV and AIDS treatment, prevention and research.” She said PEPFAR is the largest global funding program for a single disease outside of COVID-19.

New PEPFAR strategy includes ‘targeted programming’ for marginalized groups

The panel took place amid the continued push for Congress to reauthorize PEPFAR for another five years. The federal government will shut down on Oct. 1 if Congress does not pass an appropriations bill.

Secretary of State Antony Blinken last December at a World AIDS Day event in D.C. acknowledged HIV/AIDS continues to disproportionately impact LGBTQ and intersex people and other marginalized groups. A new PEPFAR strategy the Biden-Harris administration announced that seeks to “fill those gaps” over the next five years includes the following points:

• Targeted programming to help reduce inequalities among LGBTQ and intersex people, women and girls and other marginalized groups

• Partnerships with local organizations to help reach “hard-to-reach” communities.

• Economic development and increased access to financial markets to allow countries to manufacture their own antiretroviral drugs, tests and personal protective gear to give them “the capacity to meet their own challenges so that they’re not dependent on anyone else.”

The Family Research Council Action in an email to supporters urged them to tell Congress to “stop Biden from hijacking PEPFAR to promote its radical social policies overseas.” Family Watch International has said PEPFAR “has been hijacked to advance a radical sexual agenda.”

“Please sign the petition to tell the U.S. Congress to ensure that no U.S. funds go to organizations that promote abortion, LGBT ideology, or ‘comprehensive sexuality education,'” said the group in an email to its supporters. 

A group of lawmakers and religious leaders from Kenya and other African countries in a letter they wrote to members of Congress in June said PEPFAR, in their view, no longer serves its original purposes of fighting HIV/AIDS because it champions homosexuality and abortion.

“We wrote that letter to the U.S. Congress not to stop PEPFAR funding to Kenya, but to demand the initiative to revert to its original mission without conditioning it to also supporting LGBTQ as human rights,” it reads.

Biden in 2021 signed a memo that committed the U.S. to promoting LGBTQ and intersex rights abroad as part of his administration’s overall foreign policy.

American officials earlier this year postponed a meeting on PEPFAR’s work in Uganda in order to assess the potential impact the country’s Anti-Homosexuality Act will have on it. The law, which Ugandan President Yoweri Museveni signed on May 29, contains a death penalty provision for “aggravated homosexuality.”

Biden in his U.N. General Assembly speech last week noted LGBTQ and intersex rights and highlighted PEPFAR. Family Watch International in its email to supporters included a link to the letter from the African lawmakers and religious leaders.  

The Southern Poverty Law Center has designated both the FRC and Family Watch International as anti-LGBTQ hate groups.

“[PEPFAR is] not about abortions,” said Lee.

HIV/AIDS activists protest inside house speaker kevin mccarthy (r-calif.)’s office in d.c. on sept. 11, 2023. (washington blade video by michael k. lavers)

U.S. Agency for International Development Administrator Samantha Power during the panel referenced Bush’s recent op-ed in the Washington Post that urged lawmakers to reauthorize PEPFAR.

“The way he put it is no program is more pro-life [than] one that has saved more than 25 million lives,” said Power.

Power referenced the “manufactured controversy that is making it difficult to get this reauthorization.” U.S. Global AIDS Coordinator Dr. John Knengasong said a failure to reauthorize PEPFAR would weaken “our own foreign policy and diplomacy.”

“Once again the United States will be missing in action,” stressed Lee.

Assistant Health and Human Services Secretary for Legislation Melanie Egorin and Kenny Kamson, a Nigerian HIV/AIDS activist, also spoke on the panel that MSNBC host Jonathan Capehart moderated. 

From left: U.S. Global AIDS Coordinator Dr. John Nkengasong and U.S. Agency for International Development Administrator Samantha Power discuss the future of PEPFAR at the Congressional Black Caucus Foundation’s Annual Legislative Conference in D.C. on Sept. 22, 2023. (Washington Blade photo by Michael K. Lavers)
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The White House

Biden, Harris, deliver remarks for White House Office of Gun Violence Prevention

Pulse survivor Brandon Wolf among those who spoke

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President Joe Biden and Vice President Kamala Harris listen as U.S. Rep. Maxwell Alejandro Frost (D-Fla.) addresses an audience in the Rose Garden including federal, state and local officials, survivors and family members, and gun violence prevention advocates on Sept. 22, 2023. (Photo courtesy of Brandon Wolf)

President Joe Biden, Vice President Kamala Harris, and U.S. Rep. Maxwell Frost (D-Fla.) addressed an audience from the Rose Garden of the White House on Friday to honor the establishment of a first-ever White House Office of Gun Violence Prevention.

In a press release Thursday announcing the move, the administration said its aim is to implement and expand the provisions of last year’s Bipartisan Safer Communities Act along with those contained in the president’s executive orders targeting issues of gun violence.

Additionally, Biden explained in his remarks, the office will coordinate more support for survivors, families and communities, including mental health services and financial aid; identify new avenues for executive action; and “expand our coalition of partners in states and cities across America” given the need for legislative solutions on the local and state level.

Harris, who will oversee the office, pledged to “use the full power of the federal government to strengthen the coalition of survivors and advocates and students and teachers and elected leaders to save lives and fight for the right of all people to be safe from fear and to be able to live a life where they understand that they are supported in that desire and that right.”

The vice president noted her close experiences with the devastating consequences of gun violence in her work as a federal prosecutor, San Francisco district attorney, California attorney general and in her current role.

Biden’s comments also included highlights of his administration’s accomplishments combatting gun violence and a call to action for Congress to do more. “It’s time again to ban assault weapons and high capacity magazines,” he told lawmakers.

The president also credited the the work of advocates including those who were gathered at the White House on Friday: “all of you here today, all across the country, survivors, families, advocates — especially young people who demand our nation do better to protect all; who protested, organized, voted, and ran for office, and, yes, marched for their lives.”

Taking the stage before introducing Biden, Frost noted that “Right before I was elected to Congress, I served as the national organizing director for March for Our Lives, a movement that inspired young people across the nation to demand safe communities.”

“The president understands that this issue especially for young people, especially for marginalized communities, is a matter of survival,” the congressman said. And the formation of this office, “comes from Pulse to Parkland,” he said, adding, “we fight because we love.”

Human Rights Campaign National Press Secretary Brandon Wolf, a survivor of the 2016 Pulse nightclub shooting, which was America’s second deadliest mass shooting and the deadliest against the LGBTQ community, shared a comment with the Washington Blade after Friday’s ceremony:

“Seven years ago, when my best friends and 47 others were murdered at our safe place — Pulse Nightclub — we promised to honor them with action. This is what that looks like. This deep investment in the fight to end gun violence matters, and I cannot wait to see Vice President Harris lead these efforts. We can blaze the path toward a future free of gun violence. And today marked an important step in that direction.”

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